In a highly critical report, the 12-member joint committee on statutory instruments – a body appointed to consider statutory instruments made in the exercising of powers granted by act of parliament – stated that there is some ‘doubt’ over whether the proposals are intra vires and therefore urged both houses of parliament to look into the matter more closely.

The Ministry of Justice proposals would replace the current flat fee probate system with a banding system based on the value of the estate. Under the proposals some estates could potentially see fees rise by a factor of up to 129. The government has justified the changes, claiming that the money generated – a figure estimated at around £250 million a year – would be earmarked to fund the courts and tribunals service. However, the committee argued that the plans bore the hallmarks of a tax.

The committee report stated:

‘The committee has a real doubt as to whether the lord chancellor may use a power to prescribe non-contentious probate fees for the purpose of funding services which executors do not seek to use.’

One committee member, crossbencher Lady Meacher, went further and told the Law Society Gazette:

‘A £20,000 increase is not a charge. It’s clearly a tax and the lord chancellor is not entitled to impose a tax. Imposing this on poor families who might come into a bit of money is completely unreasonable.’

Her criticisms were also echoed by members of the legal profession. Beverley Diamond, head of probate at Buckles Solicitors, told the Gazette:

‘While everyone who uses the court service in England and Wales expects to pay a fee to cover costs, the probate fees do not need to be increased because the current fees already cover the full costs of running the Probate Registry.’

‘Equating the probate fee to the value of the estate is akin to an additional tax charge on an estate. If additional fees need to be generated to fund other areas of the courts and tribunals service, a small increase in the current flat fee would be more appropriate,’ she added.

However, the MoJ is refusing to backtrack on the probate fee proposals, arguing that the fee increase will introduce a fairer system in which over half of estates will pay nothing and over 90 per cent will pay less than £1,000.

Never the less, Law Society vice-president, Joe Egan, believes the issues and questions raised by the committee need to be fully addressed. He said, the Law Society ‘will be examining the report carefully, and [will] continue to urge the government to reconsider this unjustified fee hike.’